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Mambwe v People (S.C.Z. Judgment 17 of 1987)  ZMSC 1 (31 December 1987);
COSMAS BALA MAMBWE v THE PEOPLE (1987) Z.R. 11 (S.C.)
|SUPREME COURT NGULUBE, D.C.J., CHOMBA AND GARDNER, JJ.S.
(S.C.Z. JUDGMENT) NO. 17 OF 1987
|Criminal Law and procedure - Section 250(b) of Penal Code - any person - Interpretation thereof.
Criminal Law and procedure - Conviction - Particulars - Substitution of by Supreme court.
|The appellant who was a police officer appealed against both conviction and sentence for the offence of assault on a fellow police man in the due execution of his duties contrary to section 250(b) of the Penal Code. The grounds of appeal were that:
(a)as a police officer himself he was not liable to be charged under Section 250(b) of the Penal Code but that the charge against him should have been one of a disciplinary nature under section 30 (i) (iv) of the Zambia Police Act, Cap. 133.
|CHOMBA,J.S.: delivered the judgment of the court.
The appellant in this case was convicted of the offence of assault on a police officer in the due execution of his duty, contrary to Section 250(b) Cap.146 of the Laws and was in consequence sentenced to a fine of K100.00 or, in default of paying such fine, to imprisonment for one hundred days. He appeals against both conviction and sentence. When he filed his grounds of appeal he raised a number of issues but when he appeared before us he relied on the following grounds:
(1)That as a police officer himself he was not liable to be charged under Section 250(b) Cap. 146 but that the charge against him should have been one of a disciplinary nature under Section 30(1) (b) (iv) of the Zambia Police Act, Cap. 133.
(2)That at the time of the assault, the complainant was not executing duties as a police officer.
Before dealing with the submissions made in support of the grounds of appeal, we shall set out, in summary, the evidence that was adduced at the appellant's trial. On 13th December, 1983 the appellant, a constable in the Zambia Police, was in a shift which was due to commence duty at 2400 hours and to knock off at 0800 hours of the following day. The practice was that constables on duty in that shift had to parade at 2340 hours so that an inspection could be undertaken before commencement of duty. On that date the appellant was one of three or four other constables who paraded as indicated. Inspector Julius Jason Banda,
PW1 arrived before the time of commencement of the shift, and on noticing the appellant on the parade, the inspector asked him why he did not report for duty the previous day. The appellant's colleagues at the tune, namely, Constable Alexander Makumba, PW2, and Constable Patson Siulapwa, PW3, said that in reply the appellant complained that Inspector Banda was being unfair by asking why the appellant did not report for duty. The appellant said that someone ought to have been sent to his home to wake him up so that he could report on duty as was the case when other constables failed to report on time. Makumba and Siulapwa said that in reply Inspector Banda stated that it was not his duty to do what the appellant was suggesting. Tempers flared and a quarrel ensued between the two. In the process the appellant became abusive, calling the complainant a wizard and stupid person. The complainant ordered the appellant to go back home there and then. The appellant left the parade but only lingered around contemptuously. Inspector Banda advanced towards the appellant and ordered him to disappear. Thereupon the appellant struck the inspector a blow on the left ear. The inspector did not hit back. A medical examination conducted later on the inspector showed that he had suffered a traumatic perforation of the membrane in that ear.
In the light of the submissions made on both sides, it is necessary to reproduce the provisions of Section 30(1) (b) (iv) of Cap. 133 and Section 250(b) of Cap. 146. The former states Any police officer below the rank of Assistant Superintendent commits an offence against discipline if he is guilty of insubordination or oppressive conduct, that is to say, if he assaults any other police officer. The latter provides Any person who assaults, resists or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer is guilty of a misdemeanour and is liable to imprisonment for five years.
The question is whether it is competent for this court to substitute a conviction for common assault in place of one for which we have acquitted the appellant. Section 15(3) of the Supreme Court of Zambia Act, Cap. 52, provides as follows: On any appeal whether against conviction or sentence, the court may substitute a judgment of guilty of such other offence as the trial court could have entered, and, in the case of an appeal from a judgment of the High Court in its appellate jurisdiction, the court shall in addition have power to restore the conviction of the trial court.
By the provisions of Section 181(i) of the Criminal Procedure Code, Cap. 160, it was competent for the trial court in this case to have convicted the appellant of the offence of common assault, contrary to Section 247 of the Penal Code. Section 181(i) states When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it.
In the instant case, the facts relating to common assault were clearly proved, but as we have determined earlier in this judgment that police officers are not included in the term any person occurring in Section 250(b) of Cap. 146, there was a failure to prove that aspect of the offence charged. Therefore, in accordance with the provisions of Section 15(3) of Cap. 52 it is competent for this court to substitute a conviction under Section 247 of Cap. 146 in place of the conviction on the charge as originally framed. We, accordingly, substitute that conviction.